This past March marked the beginning of a more fulsome required debriefing process for defense contracts.

The Director of Defense Procurement and Acquisition Policy (DPAP) issued a class deviation memorandum, effective March 22, 2008, requiring contracting officers to: (1) provide unsuccessful offerors an opportunity to submit additional questions within two days after receiving a debriefing; and (2) hold the debriefing open until the agency delivers written responses. The class deviation implements Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (NDAA).

Federal agencies have long been required to debrief unsuccessful bidders after it awards a contract on the “basis of a competitive proposals.” And the existing FAR provisions applicable to such debriefings, FAR 15.505 and 15.506, already require agencies to include, as part of the debriefing process, “reasonable responses to relevant questions about whether source selection procedures were followed . . . .”

In practice, however, agencies regularly ignore that requirement — often providing a limited written debriefing, declaring the debriefing closed with no opportunity for questions, and thereby putting the disappointed offeror on a 5-day clock to protest, without all the information to which it is entitled.

The Civilian Agency Acquisition Council (CAAC) has authorized federal agencies to issue class deviations from the Federal Acquisition Regulation (FAR) to raise the dollar thresholds on micropurchases and simplified acquisitions.

The higher thresholds are $10,000 for micropurchases (up from $3,500) and $250,000 for simplified acquisitions (up from $150,000). Authority for these changes stems from the 2018 National Defense Authorization Act (NDAA).

The CAAC memorandum “is effective immediately, and remains in effect until the increased thresholds are incorporated into the FAR or is otherwise rescinded.” The FAR Council has opened FAR Case 2018-004 to address what the 2018 NDAA has to say about these thresholds, and the CAAC memo authorizes civilian agencies to adopt their own class deviations while the FAR Case is pending.

CAAC members are senior procurement professionals within 15 departments and agencies:

Department of Agriculture

Department of Commerce

Department of Energy

Department of Health and Human Services

Department of Homeland Security

Department of the Interior

Department of Labor

Department of State

Department of Transportation

Department of Treasury

Department of Veterans Affairs

Environmental Protection Agency

General Services Administration

Small Business Administration

Social Security Administration

The Council is responsible for: Assisting the General Services Administration in developing and maintaining the FAR System by developing or reviewing changes to the FAR; Soliciting the views of agencies, associations, and other interested parties on those proposed changes to the FAR; and Coordinating its activities with the Defense Acquisition Regulations Council (DARC).

On January 9, 2018, Department of Defense (“DoD”) issued Class Deviation 2018-O0009, designed to reduce barriers to entry for innovative entities through streamlining the awards process for research and development contracts.

This Class Deviation allows for the use of simplified acquisition procedures and excuses certain procurement obligations when DoD awards contracts and subcontracts valued at less than $7.5 million to “nontraditional defense contractors” or small businesses. The Class Deviation implements Section 873 of the National Defense Authorization Act (“NDAA”) for FY 2016, Pub. L. 114-92, as amended by Section 896 of the NDAA for FY 2017 (Pub. L. 114-328).

The Class Deviation, titled “Pilot Program for Streamlining Awards for Innovative Technology,” expands exceptions to certified cost or pricing data requirements under FAR 15.403-1(b) to include contracts or subcontracts valued at less than $7.5 million awarded to small businesses or nontraditional defense contractors. The exceptions apply to awards pursuant to: 1) a broad agency announcement for the acquisition of basic or applied research (seeFAR 35.016(b)(2)); 2) the Small Business Innovation Research (“SBIR”) Program; and 3) the Small Business Technology Transfer (“SBTT”) Program. Nontraditional defense contractors and small businesses awarded contracts or subcontracts valued at less than $7.5 million pursuant to a broad agency announcement under FAR 35.106 or the SBIR Program are also exempted from requirements for audits and records examination under FAR 52.215-2. The exceptions expire on October 1, 2020.

The Department of Defense (“DoD”) has issued two Class Deviations that provide defense agencies with greater flexibility when procuring in times of crisis.

These Class Deviations allow for the use of simplified acquisition procedures and excuse certain procurement obligations when DoD is responding to a cyber-attack or providing relief in support of domestic or international disasters.

On November 8, 2017, DoD issued Class Deviation 2018-O0001, which expands the types of procurements treated as commercial item acquisitions and exempts acquisitions in support of cyber-attacks, international disaster assistance, and “emergency or major disaster” relief from requirements to (i) comply with item unique identification, (ii) receive two offers, and (iii) limit the use of time and materials contracts. This Class Deviation also delegates authority for determinations relating to these acquisitions from the Secretary of Defense to the various heads of contracting activities within DoD.

The General Services Administration (GSA) has issued a directive allowing federal agencies engaged in emergency relief activities to raise dollar thresholds at which streamlined procurement rules can be used.

Under GSA’s temporary rules, the micro-purchase threshold is raised from $3,500 to $20,000. (In a recent Class Deviation, the Dept. of Defense raised its standard micro-purchase threshold to $5,000.) In addition, GSA raised the simplified acquisition threshold from $150,000 to $750,000 for non-commercial items and from $6.5-$7.0 million to $13 million for commercial items.

With micro-purchases the federal agencies can bypass many of the ordinary competitive requirements under the Federal Acquisition Regulation (FAR). For instances, holders of Governmentwide purchase cards (GPC) can make contract awards without soliciting competitive quotations if they consider prices to be fair and reasonable. Micro-purchases do not require provisions or clauses. The FAR’s detailed rules on micro-purchases are set forth primarily in FAR 13.2.

FAR Part 13 governs purchasing below the simplified acquisition threshold. It sets forth shorter terms and conditions, especially in the areas of reporting requirements and subcontracting. Simplified acquisition transactions above the micro-purchase threshold are reserved for small businesses.

The threshold increases will remain in effect until December 31, 2017.

GSA’s new guidance is tied to the Presidential declaration of Hurricane Harvey as a “major disaster.” Meeting the legal definition of “emergency” in GSA’s FAR Class Deviation entitled Exercise of Special Emergency Procurement Authorities means that the emergency acquisition flexibilities listed in FAR 18.2 are available for use, along with the existing acquisition flexibilities enumerated in FAR 18.1.

Agency contracting officers are required to give preference to local firms in the disaster area in accordance with the Stafford Act, implemented at FAR 26.2. GSA notes that contracting officers should first consider small business local area set-asides when feasible.